Superior Court rules in Hannaford's favor

Friday

Jun 29, 2007 at 2:00 AM

KINGSTON — Rockingham County Superior Court issued a decision Tuesday rejecting an appeal filed by abutters against the proposed Hannaford grocery store. The elderly owner of the land where the supermarket chain plans to build, Al Alberts, died shortly after hearing of the court's ruling.

Ann Sanok

KINGSTON — Rockingham County Superior Court issued a decision Tuesday rejecting an appeal filed by abutters against the proposed Hannaford grocery store. The elderly owner of the land where the supermarket chain plans to build, Al Alberts, died shortly after hearing of the court's ruling.

The appeal involved the Kingston Zoning Board of Adjustment's decision that overruled the Historic District Commission's denial of a certificate of approval to Hannaford to construct a supermarket in the town's historic district.

Scott Ouellette and others appealed the ZBA decision made, in November 2006, which unanimously found error in the HDC decision and granted approval to Hannaford to construct a 6,000-square-foot supermarket on an 11-acre parcel of property on the corner of Route 125 and Main Street.

The HDC denied Hannaford's request for a certificate of approval, finding that the proposed site was located in a predominately residential area, was too large a business compared to existing ones in the area, and that the overall design of the supermarket was not consistent with the character and purpose of the historic district. The HDC also found that the proposed supermarket was not principally designed to serve shoppers from the community and that it would increase traffic and noise on Main Street, thus impacting the residential character of the historic district.

The ZBA found error with each of the HDC's findings and granted Hannaford the certificate of approval.

In Tuesday's decision, the court held that it lacked authority to rule on the merits of the case and was limited to addressing only questions of law, specifically whether the ZBA employed the correct standard of review in considering the HDC's decision. The court emphasized that any decision by a ZBA cannot be set aside by the Superior Court except for errors of law unless the court is persuaded that the evidence before it or the ZBA's decision was unlawful or unreasonable.

Vice president of Konover Development Dusty McMahan stated that he was very pleased with the court's decision. "We were happy with the court's expeditious decision and we look forward to moving ahead and meeting with the town's planning board in July."

The court rejected the plaintiffs' assertion that the ZBA was obligated to apply a deferential standard of review of other town board decisions. The decision stated that the ZBA is a higher authority than the HDC and that therefore, in a de-novo review, ZBA has the right to substitute its judgment for that of the lower board.

Plaintiff Ouellette said that he was disappointed but not deterred.

"We know that letting a supermarket of this size into a residential portion of Kingston's historic district will ultimately be the demise of the historic district because these big businesses are always quickly followed by others," Ouellette said. "We are not about to give up fighting for what's right. We believe the judge saw that as well, but his hands are tied by this interpretation of the law."

Al Alberts, the elderly owner of the land in question, expressed satisfaction with the decision, characterizing the lawsuit as frivolous.

Some time after hearing of the decision, Alberts died at his home in Kingston. An obituary appears on Page 10 of today's newspaper.

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